- (1.) THIS second appeal has been filed against the judgment and decree dated 12.1.2009 passed by the Additional District Judge (Fast Track) No.4, Deeg (Bharatpur) in Civil Appeal No.42/2008 (7/2002) whereby the judgment and decree dated 7.1.2002 passed by the Civil Judge (Junior Division) and Judicial Magistrate, Kama (Bharatpur) in Civil Suit No.3/1999 has been up-held. Briefly stated, the facts for the disposal of the present second appeal are that the plaintiff-respondent filed a suit for eviction of the shop in the year 1980 on the basis of default and personal necessity. The learned trial court dismissed the suit by giving benefit of first default.
(2.) AN appeal was preferred which was also dismissed on 31.10.1992. The present suit has been filed by the plaintiff-respondent on1 6.11.2001 for the need of the family members on account of partition which took place between the family members. The shop in question came in the share of the plaintiff. In the written statement, the personal need was denied. The learned trial court on the basis of pleadings of the parties framed necessary issues and after hearing final submissions decreed the suit on 7.1.2002. The appeal preferred was also dismissed by the Additional District Judge No.2, Deeg, Bharatpur on 12.1.2009. Hence, the present second appeal has been filed. I have heard learned counsel for both sides and carefully perused the material available on record. Learned counsel for both the parties submitted that the matter be disposed of at admission stage. The learned counsel for the appellant, after arguing the matter at some length did not press the appeal and submitted that a reasonable time be given to him to vacate the premises. In view of the above submissions, it is not necessary to discuss the facts of the case in detail. It is suffice to say that as regards personal bonafide need of the family of the plaintiff-respondent is concerned, learned trial court has considered the evidence led by both sides and also considered the matter in relation to comparative hardship. The learned trial court finding that the plaintiff would suffer more hardship and the plaintiff was in the dire need of the suit premises, therefore, decreed the suit. The learned appellate court confirmed the findings recorded by the trial court, therefore, in view of the settled position of law, the concurrent findings of facts are not required to be interferred with in the second appeal unless the same are perverse in nature. The learned counsel for the appellant could not point out any such perversity in the judgment delivered by the courts below and further that only time has been sought to vacate the premises, therefore, the appeal requires to be dismissed. In the result, this second appeal is dismissed with the following directions: (i) The appellant shall vacate the rented premises latest by 31st October, 2010. (ii) The appellant shall also furnish an undertaking to the above effect to the satisfaction of the learned appellate court that he shall vacate the premises latest by 31st October, 2010 and during this period he shall regularly pay the rent/mesne profits for the use of the premises at the same rate which was being paid by him during the course of trial and appeal.(iii) The appellant shall also pay/deposit arrears of rent if due in the bank account of the respondent or in the trial court within a period of two months from today. (iv) The appellant shall not create any third party right in the disputed premises and shall hand over vacant possession of the disputed premises to the plaintiff respondent on or before 31st October, 2010.
(3.) IN case the appellant fails to deposit or pay mesne profits consecutively for two months or violates above conditions, then the plaintiff-respondent shall be at liberty to get the decree executed without reference to the court.;